“The Landlord and the Tenant acknowledge that the Aircraft and the Scrap are located on the Property at the date of this Lease. The Landlord covenants to remove all Aircraft and all Scrap from the Property by no later than31st December 2020 and shall provide the Tenant with monthly updates as to its progress in procuring such removal.” (3) Under Clause 4.4, WFEL is entitled to enter the Aerodrome with their workers, contractors, agents and professional advisors for this purpose at any reasonable time (whether or not during usual business hours), after giving reasonable prior written notice of at least 48 hours to CWL except in case of emergency, when as much as notice as possible should be given. (4) Pursuant to Clause 4.5, WFEL must cause as little damage to the Aerodrome, and as little disruption to CWL’s business as possible. WFEL’s access must not materially adversely affect the use and enjoyment of the Aerodrome. (5) Clause 40.2 provides: “The Landlord irrevocably appoints the Tenant to be the Landlord’s Agent to store or dispose of any Aircraft and Scrap which have not been removed from the Property by the date which is 30 Working Days [i.e.,12 February 2021 ] following31st December 2020 . The Tenant shall not be liable to the Landlord by reason of that storage or disposal. The landlord shall indemnify the Tenant in respect of any costs and expenses incurred, and any claim made by a Third Party, in relation to that storage or disposal.”
“2. Pursuant toCPR 25.1 (c)(v) an order for the sale of the Aircraft and Parts and Scrap (as defined in the Particulars of Claim); and 3. Such further or other directions for the final disposal of the claim prior31 December 2020 as the Court thinks fit.”
“... the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman[2001] 1 All ER 91 ; ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003]EWCA Civ 472at [8]; iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman; iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products vPatel at [10]; (v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust vHammond (No5)[2001] EWCA Civ 550 ; (vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: DoncasterPharmaceuticals Group Ltd v Bolton Pharmaceutical Co100 Ltd[2007] FSR 63 ; (vii) On the other hand, it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICIChemicals & Polymers Ltd v TTE Training Ltd[2007]EWCA Civ 725.” i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman[2001] 1 All ER 91 ; ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003]EWCA Civ 472at [8]; iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman; iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products vPatel at [10]; (v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust vHammond (No5)[2001] EWCA Civ 550 ; (vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: DoncasterPharmaceuticals Group Ltd v Bolton Pharmaceutical Co100 Ltd[2007] FSR 63 ; (vii) On the other hand, it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICIChemicals & Polymers Ltd v TTE Training Ltd[2007]EWCA Civ 725.”
“… the court today has ample power to grant a remedy to a licensee which will protect but not exceed his legal rights granted by the licence … In my judgment the true principle is that a licensee not in occupation may claim possession against a trespasser if that is a necessary remedy to vindicate and give effect to such rights of occupation as by contract with his licensor he enjoys. this is the same principle as allows a licensee who is in de facto possession to evict a trespasser.”
“It is clear that the Council wished, when it executed the Lease, to rid itself of the burden of managing these premises but, in effect temporarily to hand them over to Alamo. The Council wished to be able to recover possession of parts of the property bit by bit as expedient… The situation must be judged as at the time when the Council’s Notice to Quit had taken effect. At that time Alamo no longer had an estate in the land. However, since the Council had, as is conceded, required Alamo to take proceedings to evict the tenants so as to be able to hand over the properties with vacant possession, it seems to us that the effect of the Exception was to confer on Alamo a continuing right to possession for that purpose and therefore the situation is exactly as that described in paragraph 39 above. That was the evident intention behind its inclusion in the Lease, against the background of the decisions in Dutton and Countryside. Had the Council intended to grant Alamo any lesser right it would have been ineffective for the very purpose which the Council wished Alamo to achieve. The Defendants do not claim any right themselves to occupy the premises and the Council, which is entitled to the premises, has asked Alamo to evict the Defendants so as to be able, as near as may be, to fulfil its covenant to hand over the premises with vacant possession. Possession proceedings seem eminently suitable for achieving this aim.”
“With regard to the first point, it is reasonably certain that a reversioner cannot maintain actions in the nature of trespass, including, I think, actions for infringement of natural rights arising out of his ownership of land, without alleging and proving injury to the reversion. If the thing complained of is of such a permanent nature that the reversion may be injured the question of whether the reversion is or is not injured is a matter for the jury: Simpson v Savage ... I take “permanent”, in this context, to mean such as will continue indefinitely unless something is done to remove it. That a building which infringes ancient lights is permanent within the rule, for, though it can be removed before the reversion falls into possession, still it will continue until it be removed. On the other hand, a noisy trade, and the exercise of an alleged right of way, are not in the nature permanent within the rule, for they cease of themselves unless there be someone to continue them. In my opinion, what is complained of in the present case is of a permanent nature within the rule. The sewage of Llanwrst will continue to be turned into the Conway unless and until something is done to divert it elsewhere. It is not only a case only of the present intention of the defendants, but of the necessary consequences of the physical conditions, if nothing is done to alter them. Further, I am satisfied that the plaintiff’s reversion is in fact injured and depreciated in value by what is happening at the present time.”
“Kennedy LJ, to whose judgment Laws LJ made no reference, said that, on the facts of that case, the requirement of the law that in order to succeed in an action for possession a plaintiff must show that he had the right to possession of the land were met. He said at page 151: “The plaintiff does have a right to possession of the land granted to it by the licence. It is entitled “to enter andoccupy” (Kennedy LJ’s emphasis) the land in question. The fact that it has only been granted the right to enter and occupy for a limited purpose (specified in Clause 2 of the licence) and that, as I would accept, the grant does not create an estate in land giving the plaintiff a right to exclusive possession does not seem to me to be critical.”” “The plaintiff does have a right to possession of the land granted to it by the licence. It is entitled “to enter andoccupy” (Kennedy LJ’s emphasis) the land in question. The fact that it has only been granted the right to enter and occupy for a limited purpose (specified in Clause 2 of the licence) and that, as I would accept, the grant does not create an estate in land giving the plaintiff a right to exclusive possession does not seem to me to be critical.””
“Waller LJ said this at paragraphs 12 and 13: “In my view it is important not to confuse contractual rights, in relation to which the developers may well have rights against any person who seeks to interfere therewith, with the right of possession, which is the foundation of the Order 113 remedy. … The judgment of Kennedy LJ also supports the view that something beyond just the right to enter the land is required. …he places emphasis on the fact that the right is to enter and occupy. It seems to me that there is a clear difference between a licence granted for the purpose of access, which does not provide effective control over the land, and a license to occupy which does.”
“While the orthodox or literal translation by way of depositum is a consensual bailment deriving from express agreement between bailors and bailee there exist certain analogous forms of relationship based on one person's unrewarded possession of another's goods which, while not directly the product of agreement, may produce obligations akin to those of an orthodox bailment by way of depositum and might in some cases traditionally be viewed as deriving from an implied agreement to possession.” and at paragraph 120 entitled “Involuntary Deposit”, which provides: “Where a chattel is sent, without request or arrangement, by one person to another who does not hold himself out as willing to receive it, the person to whom it is sent is deemed to be an involuntary bailee and will ordinarily owe no responsibility to the sender to exercise reasonable care for its safe custody or protection, but must not deliberately convert it to his own use and must take reasonable care when purporting to redeliver the chattel to the owner or his authorised representative (which would otherwise render him liable in conversion).”
“…by the representations of [Mr Walton] the Claimants became voluntary Bailees.”, and paragraph 43.5 of the draft amended Defence, which I will address later in this judgment, states: “If the Claimants are bailees, they are voluntary bailees…”
“The period between giving of the notice and the date specified in the notice as that on or after which the bailee proposes to exercise the power of sale shall be such as will afford the bailor a reasonable opportunity of taking delivery of the goods.”
“By an informal oral licence CWL agreed to allow [the Sixth Defendant] to park the Tristars at the Aerodrome, with effect from1 January 2018 , in consideration of Tempus agreeing to pay parking charges at the rate of£50 per Tristar per day. That licence and its terms were acknowledged by (among other things) an email dated5th November 2018 from Scott Terry, CEO of [the Sixth Defendant] to Mr David Walton, (then of CWL).”
“There was no mention in [Mr Walton’s] email of any intention to terminate the Parking Licence or for that matter any assertion that it had been terminated…”
“At no stage in any of these conversations was Tristar’s right to have the Tristars parked at the Aerodrome ever questioned or discussed. Both David Walton and I proceeded on the basis that there was no question as to this.”
“The terms of the Parking Licence did not impose an end date and it has always been my understanding that the Parking Licence would continue until the refurbishment of the Tristars had been completed and they then could be flown out of the Aerodrome in all of my conversations with and communications with David Walton this was never in issue.”
“Or around August or September 2019, I spoke to Mr Steven by telephone, and told him that Tristar Air was running out of time and that the aircraft needed to be gone by the end of March 2020 at the latest because the runway would be used for the parking of cars from that point, thereby preventing aircraft from flying out of the site.”
“In or around September 2019, the decision was made to halt the maintenance works on the Tristars as it was not economical to continue to pay for the Tristars to be maintained, without a firm commitment from David Walton that we would be able to fly the Tristars out of the Aerodrome.”
“There was no mention made of the Parking Licence being revoked.”
“I spoke last week to the Cox team who were very helpful. It seems there is a possible plan that would allow the works to be completed and the aircraft flown off towards the end of the year. There are a number of logistical issues with this (namely removing cars from the portion of the runway that will be used for car storage and ensuring parked cars are not damaged) but I think working together with Cox and yourselves we can overcome this. Cox have asked me to liaise with yourself in the first instance as they’ve told us commercially we need to reach agreement before we get into the technical details with Cox – I assume this is correct?”
“Cox have asked me to liaise with yourself in the first instance as they’ve told us commercially we need to reach agreement before we get into the technical details with Cox – I assume this is correct.”
“I must make clear to you that neither I nor my company (C. Walton Ltd) are in a position to authorise any works on these aircraft… We will not allow the aircraft to be removed from site by any party until we have reached agreement regarding the parking charges… I suggest you approach the administrator with a view to relieving him of this responsibility for these aircraft because they can hardly be viewed as an asset…!”
“[Mr Walton] continued to maintain he would be supportive of JSS’ efforts to render the 747s airworthy so that they would be capable of being flown out. [Mr Walton] raised no issue regarding the runway or any restrictions on the 747s being able to use it to fly out for that purpose. [Mr Walton] was fully aware that it was JSS’ intention to restore the 747s to make them air worthy and capable of being flown out of the Aerodrome. He accepted that this would require time and effort and the facilitation of access to achieve that project.”, and at [16] “[Mr Walton] therefore made no indication that there was any timeframe by which the project needs to be completed. He certainly confirmed that there would be no issue in granting access to the Aerodrome and raised no impediment to facilitating access for those works or regarding the ability of the 747s to use the runway to be flown out once they were restored. To the contrary, [Mr Walton] represented that he would do all he could to support that aim and still maintains this in his statements, despite it clearly being belied by his actions since completion of the purchase by JSS.”
“(a) I told him that if his company did purchase the 747, the Claimants required their removal very quickly and certainly by the end of March 2020 at the latest and that he should not underestimate the scale of the task involved in making the 747s airworthy and capable of removal. I explained that the number of cars being stored on the runway was continuing to grow and by the end of March 2020 there would be so many on the runway that it would not be possible for the aircraft to fly out; (b) I encouraged him to arrange engineers to inspect the 747s to make sure that the planned restoration was viable; (c) I informed him that ... there was no supporting engineering capability at the Aerodrome for this type of project; (d) He told me he was very confident that his company could readily remove the 747s within two to three months ... (e) Mr Kaddah asked me whether£100,000 pounds would be acceptable in respect of outstanding charges. I told him that this was a bit lean and that£150,000 would be more acceptable. We did not reach a specific agreement on this.”
“Despite the deletion of the advertised counterclaim, for the purposes of this amendment, the Eighth Defendant reserves all rights as to any claims that it may wish to bring as a result of the conduct the Claimants.”
“Hindering our attempts to cooperate with you will only have the effect of delaying the satisfactory resolution of this project and will most likely force us into unreasonable delays to create a UK engineering team specifically to prepare the aircraft for flight. We hope we can count on your cooperation and support to address this situation satisfactorily.”
“In further consideration for the agreement reached through David Walton, the Eighth Defendant committed financial resources and manpower to making the 747s airworthy, so that they could be removed from site.”